No.

BREA, a

DISTDIV3

Plaintiff/Respondent.,
VS.

1 2013

Defendants/Appellants.
Judgment Chaffee ,Judge, 30-2011-00444494 January 26,2012 Court of Orange 30-2011-00445611

AnthonyL. John]. Murphy, at S. Randolph, Brea, CA

Tel.: (714) Fax: (714)

90861

Bader, 78037 at Law Highway CA

Tel.: (949) 242-2605 . (949) 494-7455 (949) 494-1017

REQUEST FOR JUDICIAL NOTICE

Appellants hereby move this Court for an order taking judicial notice of:

1.

Modiano v. City of Anaheim (2012) No. G048303, Appellants Reply Brief, filed Oct. 2, 2013; Memorandum for All United States Attorneys, James Cole, Deputy U.S. Attorney General, Official Memorandum of Executive Branch (Federal sovereign), Aug. 29, 2013; United States of America v. 2601 W. Ball Rd., Anaheim (C.D.CA 2012) No. SACV 12-01345, Order Dismissing Case, Oct. 11, 2013; United States of America v. 1638 E. 17th Street, Santa Ana (C.D.CA 2013) No. SACV 13-0615, Stipulation by Parties and Request by United States to Dismiss Case with Prejudice, Oct. 11, 2013. ITEM #1

2.

3.

4.

Item 1, the reply brief filed in Modiano v. City of Anaheim (2012) No. G048303 [Modiano], meets all the requirements for judicial notice by an appellate court. (See Ca. Ev. Code 459; Ca. Rule of Court 8.252(a).) Under Ca. Ev. Code 452(d), judicial notice may be taken of "[r]ecords of ... any court of record of the United States." (See also, e.g., Farris v. Fireman's Fund Ins. Co. (2004) 119 Cal. App. 4th 671,676 n.l (taking judicial notice of pleadings and exhibits filed in a petition for writ of mandate); PG&E Corp. v. Public Utilities Com 'n (2004) 118 Cal. App. 4th 1174, 1191 n.14, 1220 n.38 (taking judicial notice of a bankruptcy petition and complaints); City of Hawthorne ex rel.
1

Wohlner v. H&C Disposal Co. (2003) 109 Cal. App. 4th 1668, 1678 (taking judicial notice of complaints).) It meets the relevance requirements in Rule 8.252(a)(2)(A) because it is includes logic from a different jurisdiction (federal court) in respect to an issue in this case (i.e. incorporation of more protective rights under CDPA and Unruh 51(f)). The Reply Brief has been included as Exhibit 1 with this Request pursuant to Rule 8.252(a)(3). ITEM #2 Item 2 is a copy of an official policy memorandum written by Deputy U.S. Attorney General James M. Cole to all U.S. Attorneys dated August 29, 2013. This document meets all the requirements for judicial notice by an appellate court. (See Ca. Ev. Code 459; Ca. Rule of Court 8.252(a).) It is properly the subject of judicial notice under Ca. Ev. Code 452(c) as a record of the [o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. The memorandum sets forth a policy of the Executive Branch of the Article II federal power. The U.S. Department of Justice is part of the executive branch of the United States government. Accordingly, it is the proper subject for judicial notice. (See People v. Kim, (2009) 45 Cal.4th 1078,1106, [fn. 19].) The memorandum meets the relevance requirements in Rule 8.252(a)(2)(A) because it addresses current federal policy in the area of medical marijuana that counters concerns expressed by the state Supreme Court in the
2

dicta of City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729. On its first page, the memorandum is signed by James Cole and is self-authenticating. (See Ca. Ev. Code 1453(a); Laabs v. City of Victorville, (2008) 163 Cal.App.4th 1242, 1263; Poland v. Dept. of Motor Vehicles, (1995) 34 Cal.App.4th 1128, 1135.) The document is included as Exhibit 2 with this motion. (See Ca. Rule of Court 8.252(a)(3); Rule 8.486(c)(1).) ITEM #3 The order from United States v. 2601 W. Ball Rd., Anaheim [Jalali] (C.D.CA. 2012) No. SACV 12-01345 meets all the requirements for judicial notice by an appellate court. (See Ca. Ev. Code 459; Ca. Rule of Court 8.252(a).) Under Ca. Ev. Code 452(d), judicial notice may be taken of "[r]ecords of ... any court of record of the United States." (See also, e.g., Farris v. Fireman's Fund Ins. Co. (2004) 119 Cal. App. 4th 671,676 n.l (taking judicial notice of pleadings and exhibits filed in a petition for writ of mandate); PG&E Corp. v. Public Utilities Com 'n (2004) 118 Cal. App. 4th 1174, 1191 n.14, 1220 n.38 (taking judicial notice of a bankruptcy petition and complaints); City of Hawthorne ex rel. Wohlner v. H&C Disposal Co. (2003) 109 Cal. App. 4th 1668, 1678 (taking judicial notice of complaints).) The order is relevant because it shows the local U.S. Attorneys office is now following current federal policy in the area of medical marijuana. The order also clarifies concerns in the area of federal law expressed in dicta by the state Supreme Court in City of Riverside v.
3

Inland Empire Patients Health and Wellness Center, Inc., supra. On its last page, the order is signed by federal judge Andrew Guilford and is self-authenticating. (See Ca. Ev. Code 1453(a); Laabs v. City of Victorville, (2008) 163 Cal.App.4th 1242, 1263; Poland v. Dept. of Motor Vehicles, (1995) 34 Cal.App.4th 1128, 1135.) The document is included as Exhibit 3 with this motion. (See Ca. Rule of Court 8.252(a)(3); Rule 8.486(c)(1).) ITEM #3 The stipulation and request for dismissal filed by the United States in United States v. 1638 E. 17th Street, Santa Ana (C.D.CA. 2013) No. SACV 130615 meets all the requirements for judicial notice by an appellate court. (See Ca. Ev. Code 459; Ca. Rule of Court 8.252(a).) Under Ca. Ev. Code 452(d), judicial notice may be taken of "[r]ecords of ... any court of record of the United States." (See also, e.g., Farris v. Fireman's Fund Ins. Co. (2004) 119 Cal. App. 4th 671,676 n.l (taking judicial notice of pleadings and exhibits filed in a petition for writ of mandate); PG&E Corp. v. Public Utilities Com 'n (2004) 118 Cal. App. 4th 1174, 1191 n.14, 1220 n.38 (taking judicial notice of a bankruptcy petition and complaints); City of Hawthorne ex rel. Wohlner v. H&C Disposal Co. (2003) 109 Cal. App. 4th 1668, 1678 (taking judicial notice of complaints).) The request is relevant because it shows the local U.S. Attorneys office is now following current federal policy in the area of medical marijuana. The request show the federal issue in this area has changed significantly. The order also clarifies
4

concerns in the area of federal law expressed in dicta by the state Supreme Court in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., supra. On its last page, the request/stipulation is signed by counsel for various parties, including an Asst. U.S. Attorney. (See Ca. Ev. Code 1453(a); Laabs v. City of Victorville, (2008) 163 Cal.App.4th 1242, 1263; Poland v. Dept. of Motor Vehicles, (1995) 34 Cal.App.4th 1128, 1135.) The document is included as Exhibit 4 with this motion. (See Ca. Rule of Court 8.252(a)(3); Rule 8.486(c)(1).) CONCLUSION For the foregoing reasons, Appellants hereby request that the Court take judicial notice of the four (4) aforementioned items. Respectfully submitted on October 15, 2013:

_________________________________ Matthew Pappas, SBN: 171860 Attorney/Co-Counsel for Appellants

Exhibit 1

No.: G048303
IN THE

<!Court of

~ppeaI

COURT OF APPEAl-4TH DIST DIV.3

FILSD
,. /.:

STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

OCT 0'22013
~~-----------

MARTIN MODIANO, an individual; HELAINE JONES, an individual; KEVIN BUTCHER, an individual; MARLA JAMES, an individual; and PATIENT MED-AID, a non-profit group of patients associated together under Ca. Health & Safety Code 11362.775,

Plaintiffs/Appellants)
vs. CITY OF ANAHEIM, a California municipal corporation; TOM TAIT, in his capacity as Mayor of Anaheim; HENRY W. STERN, in his capacity as City Treasurer of Anaheim,

Defendants/Respondents.
Hon. David Chaffee, Judge Superior Court of Orange County Judgment entered March 14,2013 No.30-2012-00601853-CU-CR-CJC

APPELLANTS' REPLY BRIEF

Matthew Pappas, SBN: 171860 Lee Durst, SBN: 69704 22762 Aspan Street, #202-107 Lake Forest, CA 92630 Telephone: (949) 382-1486 Facsimile: (949) 242-2605

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................ III TABLE OF ABBREVIATIONS.................................................................... VI REPLY ............................................................................................................... 1 I. CONTRARY TO ANAHEIMS ASSERTION, THE PLAINTIFFS REMAIN QUALIFIED DISABLED INDIVIDUALS UNDER STATE LAW FOR PURPOSES OF THE CDPA AND UNRUH .............................. 1 A. CIVIL CODE 54(B) APPLIES CALIFORNIAS DEFINITION OF DISABILITY AND MEDICAL CONDITION TO ALL OF SECTION 54, INCLUDING THE SECTION 54(C) PROTECTIONS OF RIGHTS INCORPORATED BY REFERENCE ..................... 1 B. CIVIL CODE 54(C) REFERS TO A VIOLATION OF THE RIGHT OF AN INDIVIDUAL UNDER THE ADA' ....................................................................... 3 C. DESPITE THE CITYS ASSERTION, THE CALIFORNIA DEFINITION OF DISABILITY INCLUDES ITS OWN ILLEGAL DRUG USE PROVISION THAT IS MORE INCLUSIVE THAN FEDERAL LAW ............................................................ 6 D. SUBPART (C) OF CIVIL CODE 54 AND SUBPART (F) OF CIVIL CODE 51 MUST BE INTERPRETED LIBERALLY TO PROTECT AGAINST DISCRIMINATION.. 6 E. THE JAMES CASE SUPPORTS THE POSITION THAT STATE LAW APPLIES FOR PURPOSES OF THE CDPA AND UNRUH. ........................................................... 8 II. THE CUA AND MMPA APPLY ONLY TO SERIOUSLY ILL CALIFORNIANS WHO QUALIFY AS DISABLED INDIVIDUALS UNDER GOVT CODE 12926................................................................... 10 A. WHEN USE OF CANNABIS IS NOT UNLAWFUL, PATIENTS REMAIN PROTECTED UNDER THE SEPARATE AND INDEPENDENT CDPA AND UNRUH LAWS. ............................................................................................................. 11 B. THE MMPA ESTABLISHED THE PATIENT COLLECTIVE SYSTEM THAT CAN ONLY PROVIDE FOR DISABLED INDIVIDUALS .................................................. 12
i

C. CONTRARY TO THE CITYS ARGUMENT AND THE TRIAL COURTS ERRONEOUS CONCLUSION, DENYING ACCESS TO MEDICAL MARIJUANA DISPENSARIES PREVENTS PATIENTS FROM OPERATING ON A LEVEL PLAYING FIELD ........................................................................................................... 14 D. PATIENTS ARE NOT REQUIRED TO FOREGO A PRESCRIBED OR
RECOMMENDED TREATMENT OR AIDE SIMPLY BECAUSE ANOTHER TYPE OF TREATMENT OR AIDE IS AVAILABLE ...............................................................

16

E. THE RATIONAL BASIS EQUAL PROTECTION HOLDING IN HILL DOES NOT APPLY IN THIS CASE ............................................................................... 19 III. THE EMPLOYMENT RELATED ACCOMODATION ISSUES IN ROSS ARE INAPPLICABLE HERE............................................................ 20 IV. THE PATIENTS HAVE EACH BEEN NEGATIVELY IMPACTED BY THE CITYS BAN ON PATIENT GROUPS AND THEREFORE HAVE STANDING TO ASSERT CLAIMS................................................ 22 V. THERE IS NO FIRST AMENDMENT RIGHT FOR CITIES TO USE TAXPAYER MONEY TO THWART STATE LAW THAT DIFFERS FROM, BUT IS NOT PREEMPTED BY, FEDERAL LAW ON THE SAME SUBJECT .................................................................................. 26 CERTIFICATE OF COUNSEL ................................................................... 30 PROOF OF SERVICE BY MAIL ...................................................................31

ii

TABLE OF AUTHORITIES
CASES Addiction Specialists, Inc. v. Township of Hampton (3d Cir.2005) 411 F.3d 399................................................................................................... 25 Bay Area Addiction Research and Treatment, Inc. v. City of Antioch (9th Cir. 1999) 179 F.3d 725....................................................................................................13 City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729................................................................................................ 12 County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861 .................................................................................19, 20 County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798 ...................................................................................... 24 Crowder v. Kitagawa (9th Cir. 1996) 81 F.3d 1480 ........................................................................................ 16, 17, 19 Department of Fair Employment and Housing v. Law School Admission Council, Inc. (E.D.Ca, 2012) No. C-12-1830 .....................................................................3, 5 Enyart v. Nat'l Conference of Bar Examiners, Inc. (9th Cir. 2011) 630 F.3d 1153 ................................................................................................. 26 Jankey v. Lee (2012) 55 Cal.4th 1038, 150 Cal.Rptr.3d 191, 290 P.3d 187 .................................. 3, 5, 9 Marla James v. City of Costa Mesa (9th Cir. 2012) 700 F.3d 394, cert. denied 133 S.Ct. 2396 (2013)............................................. 8 Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 94 Cal.Rptr.3d 685, 208 P.3d 623 ....................................... 7, 8 People v. Hochanadel (2009) 176 Cal.App.4th 997 ................................................................................. 16, 25

iii

Project Life, Inc. v. Parris Glendening (2001) 139 F.Supp.2d 703 ..........................................................................................13 Regional Economic Community Action Program, Inc. v. City of Middletown (2d Cir. 2002) 294 F.3d 35 .............................................................................13 Ross v. Ragingwire Telecommunications, Inc. (2008) 42 Ca1.4th 920, 174 P.3d 200 ................................................................. passim Wilson v. Murillo (2008) 163 Cal.App.4th 1124..................................................................................... 21 STATUTES 42 U.S.C. 12210(d) ............................................................................... 1, 3, 5, 8 California Compassionate Use Act, Health & Safety Code 11362.5 ........... passim California Disabled Persons Act, Civil Code 54 ........................................ passim California Medical Marijuana Program Act, Health & Safety Code 11362.7 ............................................................................................................... passim California Unruh Civil Rights Act, Civil Code 51 ..................................... passim CCP 526a ....................................................................................................... 29 Civil Code 51(f) ...................................................................................... passim Civil Code 54(b) ..................................................................................... passim Civil Code 54(c)...................................................................................... passim Civil Code 55 ................................................................................................... 5 Federal Americans with Disabilities Act, 42 U.S.C. 12101, et seq............... passim Federal Controlled Substances Act, 21 U.S.C. 801, et seq. ......................... v, 1, 27 Govt Code 12926................................................................................... passim Govt Code 12926(j)(6) .................................................................................. 11 Govt Code 12926(k)(6) ..................................................................... 5, 6, 8, 11 Govt Code 12926.1 ................................................................................ 7, 8, 11 Health & Safety Code 11362.7(h).......................................................... 6, 13, 18 Health & Safety Code 11362.7(h)(12)(A) ........................................................13
iv

Stats. 1992, ch. 913, 1 (AB 1077) ...................................................................... 7 OTHER AUTHORITIES Assembly Judiciary Committee, AB 1077 (Jan. 22,1992), at 2 ............................ 7 REGULATIONS 28 C.F.R. 35.130(g) .................................................................................. 25, 26 CONSTITUTIONAL PROVISIONS Cal. Const. art. 11, 7 ....................................................................................... 12

TABLE OF ABBREVIATIONS

ADA CDPA CSA CUA FAC MMPA O.B. UNRUH

. . . . . . . .

Federal Americans with Disabilities Act, 42 U.S.C. 12101, et seq. California Disabled Persons Act, Civil Code 54 Federal Controlled Substances Act, 21 U.S.C. 801, et seq. California Compassionate Use Act, Health & Safety Code 11362.5 Plaintiffs/Appellants First Amended Complaint California Medical Marijuana Program Act, Health & Safety Code 11362.7 Opposition Brief, City of Anaheim California Unruh Civil Rights Act, Civil Code 51

___________________________ Unless specified, all references are to the California Civil Code

vi

REPLY
I. CONTRARY TO ANAHEIMS ASSERTION, THE PLAINTIFFS REMAIN QUALIFIED DISABLED INDIVIDUALS UNDER STATE LAW FOR PURPOSES OF THE CDPA AND UNRUH Subpart (c) of Civil Code 54 states: (c) A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section.

In its opposition, the City contends the illegal drug use provision of the ADA (42 U.S.C. 12210(d)) results in the patients in this case being disqualified for protection under Civil Code sections 51(f) and 54(c) because they use marijuana recommended by state licensed doctors. In essence, the Citys position is that an otherwise qualified individual who is engaged in the use of a Schedule 1 controlled substance under federal law (as defined in the federal CSA) is disqualified from ADA protection and hence there can be no violation of the separate and independent 51(f) and 54(c) provisions of the states Unruh and CDPA laws. A. Civil Code 54(b) applies Californias definition of disability and medical condition to all of section 54, including the section 54(c) protections of rights incorporated by reference An analysis of the plain language of section 54(b) displaces the Citys argument: (b) For purposes of this section: (1) Disability means any mental or physical disability as defined in Section 12926 of the Government Code.
1

(2)

Medical condition has the same meaning as defined in subdivision (h) of Section 12926 of the Government Code.

Subpart (b) explicitly applies to this section, meaning all of section 54, including subsection (c), the part of section 54 that incorporates by reference the protection of ADA rights. It cannot apply to itself alone because it is limited to definitions. If it applied only to subpart (a) or subpart (c), it would have been included in those subparts. Likewise, if 54(b) was meant to apply to just (a) or (c), the term this section is rendered ambiguous because it leaves it up to the reader to choose the applicable subpart. An analysis of what the word section refers to in other areas of the statute demonstrates it refers to all of section 54. For example, the remedies provision of section 54.3 uses the term section to refer to all of 54: (a) Any person or persons, firm or corporation who denies or interferes with admittance to or enjoyment of the public facilities as specified in sections 54 and 54.1

The reference to sections 54 and 54.1 shows the word section is meant to apply not to a specific subpart, but to all of the referenced section. This supports the interpretation that subpart (b) applies to all of 54, including subparts (a) and (c). Another example is subpart (c) itself: A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section. (emphasis added)

Given the remedy provisions of section 54.3 apply to violations of 54 (or 54.1), the term this section in subpart (c) refers the same way it does in subpart (b) to all of section 54 further showing that qualification is tied to California (Govt Code 12926) rather than federal law (42 U.S.C. 12210(d).) B. Civil Code 54(c) refers to a violation of the right of an individual under the ADA While perfected violations of the ADA are per se violations of sections 51(f) and 54(c) (see Jankey v. Lee (2012) 55 Cal.4th 1038, 1044, [150 Cal.Rptr.3d 191, 290 P.3d 187] [Jankey]), violations of rights protected by the ADA that may not independently result in ADA violations can still result in violations of sections 51(f) and 54(c). Key is how subpart (c) is written. Rather than saying, a violation of the ADA is a violation of this section, the subpart is triggered instead by a violation of the right of an individual under the ADA. Indeed, the identical language was used by the Legislature in section 51(f) of Unruh. It follows that it is not just a violation of the ADA, but also a violation of a right protected by the ADA that triggers 51(f) and 54(c). In Department of Fair Employment and Housing v. Law School Admission Council, Inc. (E.D.Ca, 2012) No. C-12-1830 [LSAC], a federal judge addressed the creation of ADA rights protected through Unruh section 51(f). In denying most of the defendants motion to dismiss, the court held Californias disability laws are independent of the federal ADA:
3

First, the rights encompassed by 51[f] are in common parlance created by that provision. Whether the rights are explicitly enumerated in 51 or incorporated by reference pursuant to its terms, 51[f] accords them legal status, brings them into existence, and thus creates them. See American Heritage Dictionary, 3rd Edition, p. 438 (1992) (defining create as To cause to exist; bring into being); www.meriam-webster.com/dictionary/create (create defined as to bring into existence. Thus, under the California Constitution, the California Legislature created the rights encompassed by 51[f] when it enacted that section into law. (Ibid.) The court also determined that Unruh incorporates ADA rights as those rights may be expanded from time to time: At oral argument, the parties disagreed over whether 51(f) of the Unruh Act incorporates the ADA as it currently exists in federal law, or only as it existed in 1992 when the Legislature enacted 51(f) While 51(f) refers specifically to the original ADAs public law number, the broad scope of the ADA, even as it existed in 1990, counsels in favor of the broader prong of Palermo. (Ibid.) In rejecting the defendants argument related to ADA private rights of action, the court observed: As noted above, the Unruh Act incorporates the substantive standards of the ADA and creates a private right of action as a matter of state law. Whether the ADA itself provides a private cause of action under federal law does not affect enforcement of the Unruh Act a state statute governed by its own enforcement mechanism. (Ibid.) As the court properly concluded, Civil Code 51(f), like 54(c), creates the substantive provisions of the ADA that protect the rights of individuals in state law. Essentially, the provisions of the ADA that protect rights become state law at which point state law enhancements, like state enforcement
4

provisions, can modify or direct its application, for instance in terms of what definitions apply. Here, Civil Code 54(b) directs that the state law

protections incorporated from the ADA be subject to the provisions of Govt Code 12926 for purposes of defining disability. That Government Code section includes its own exclusion from the definition of disability people engaged in illegal drug use under state law (Govt Code 12926(k)(6)) and thus overrides the more rigid federal prohibition (42 U.S.C. 12210(d)). Similarly, the plain language of 51(f) and 54(c) incorporating the rights protected under the ADA, rather than limiting state violations to a proven violation of the ADA, supports the LSAC courts conclusions. Indeed, when there is a remedy created in state law that may not exist or that actually conflicts with the ADA, the state law provision may override for purposes of Unruh and the CDPA. The Jankey court dealt with that type of issue and held the states mandatory attorney fee provision in Civil Code 55 applies despite a seemingly conflicting provision in the ADA. This comports with the district courts analysis in LSAC that Civil Code 51(f) creates independent protections of rights directly in state law and further supports the notion that the independent state provision governing illegal drug use applies here.

C.

Despite the Citys assertion, the California definition of disability includes its own illegal drug use provision that is more inclusive than federal law Under subsection (b) of Civil Code 54, it is the California definition of

disability that applies for purposes of the CDPA, including subpart (c), rather than the more restrictive definition included in the ADA. Indeed, if Govt Code 12926 the statute 54 looks to for the definition of disability had not included an illegal drug use disqualifier, state law might then look to the federal laws restriction. However, Govt Code 12926 has its own drug use disqualifier: Physical disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. (Ca. Govt Code 12926(k)(6).) In this case, the patients use of medical cannabis is not unlawful under California law. (Health & Safety Code 11362.5, 11362.7(h), 11362.775.) In their FAC, the plaintiffs alleged they have valid recommendations from doctors for medical cannabis and included factual claims that they suffer from conditions that qualify them for those recommendations. For purposes of the Citys two demurrers, those allegations are deemed true. D. Subpart (c) of Civil Code 54 and subpart (f) of Civil Code 51 must be interpreted liberally to protect against discrimination The Citys urged narrow interpretation of state anti-discrimination law is contrary to the commands of both the state Supreme Court and Legislature.
6

[W]ith regard to the Unruh Civil Rights Act ... it must be construed liberally in order to carry out its purpose to create and preserve a nondiscriminatory environment in California (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 669 [94 Cal.Rptr.3d 685, 208 P.3d 623].) When the Legislature made sweeping changes to Californias disability laws in 1992, it announced: It is the intent of the Legislature in enacting [the CDPA] to strengthen California law in areas where it is weaker than the Americans with Disabilities Act of 1990 [citation] and to retain California law when it provides more protection for individuals with disabilities than the [ADA]. (Stats. 1992, ch. 913, 1 (AB 1077) and Assembly Judiciary Committee, AB 1077 (Jan. 22,1992), at 2.) (emphasis added). It also made clear that the CDPA and Unruh are independent state laws in section 12926.1 of the Government Code: (a) The law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act of 1990 (P.L. 101-336). Although the federal act provides a floor of protection, this state's law has always, even prior to passage of the federal act, afforded additional protections. The City urges a narrow interpretation of 51(f) and 54(c) that is at odds with the intent of the Legislature that Californias law afford additional protections that are independent from those in the federal [ADA]. Such interpretation is further at odds with the Legislatures command state law be retained when it provides more protection than the ADA. Narrow

interpretation is likewise contrary to the state Supreme Courts holding that Urhuh must be construed liberally to preserve a nondiscriminatory
7

environment. (Munson, supra.) Coupled with the explicit directive in Civil Code 54(b) that the definition of disability set forth in Govt Code 12926 is to be used for all of section 54, the Citys suggestion that federal law is used instead of more inclusive state law to determine illegal drug use is untenable. E. The James case supports the position that state law applies for purposes of the CDPA and Unruh. Throughout its opposition brief, the City references Marla James v. City of Costa Mesa (9th Cir. 2012) 700 F.3d 394, cert. denied 133 S.Ct. 2396 (2013) [James] for the proposition that there is no independent ADA violation and therefore no state law violation under Civil Code 51(f) and 54(c). (O.B. p. 4,8,17,28,38,40.) However, the Legislature intended the ADA be a floor of protection and commanded that California law be retained when it is more protective. (Govt Code 12926.1.) The ADAs illegal drug use provision is more restrictive than state law. (Compare 42 U.S.C. 12210(d) and James, supra, with Govt Code 12926(k)(6).) Indeed, the panel majority in James held that state exceptions to criminal liability for medical marijuana use do not vitiate its interpretation of the federal prohibition. (James, 700 F.3d. at 405.) However, when the state law definition of disability that itself addresses illegal drug use is retained, the plaintiffs here survive qualification analysis and protections prohibiting discrimination by public entities remain in-tact. The James case itself supports the proposition that an inclusive and independent interpretation of Civil Code 51(f) and 54(c) comports with the
8

plain language of 54(b) as well as the aforementioned intent expressed by the Legislature that state law is broader and more protective than the ADA. The court in Jankey noted that even Congress, in the ADA itself, commands its law does not preempt more inclusive state law in the area of disability rights: Congress has spoken to preemption directly: a construction clause in the ADA spells out the acts intended effect on state laws. The clause disavows any broad preemptive intent, instead permitting states to enact and enforce complementary laws: Nothing in this Act shall be construed to invalidate or limit the remedies, rights, and procedures of any ... law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this Act. (Jankey, 55 Cal.4th at 1049) Civil Code 51(f) and 54(c) create in state law the protections of rights included in the ADA. On the other hand, restrictive provisions in the ADA that disqualify patients are not parts of the ADA that convey rights but rather restrict qualification. Such restrictions are not incorporated by 51(f) or 54(c). Instead, through Civil Code 54(b), the more protective state law definitions of disability and illegal drug use found in Govt Code 12926 supersede more rigid provisions incorporated from the federal law. Even if, as the City suggests, there is no independent ADA violation because the plaintiffs are disqualified from protection under the federal law based on medical marijuana use, they remain qualified for protection under state law for purposes of both Unruh and the CDPA ( 51(f) and 54(c)).

II.

THE CUA AND MMPA APPLY ONLY TO SERIOUSLY ILL CALIFORNIANS WHO QUALIFY AS DISABLED INDIVIDUALS UNDER GOVT CODE 12926 In its opposition brief (O.B. at 16), Anaheim asserts Ross v. Ragingwire

Telecommunications, Inc. (2008) 42 Ca1.4th 920, 174 P.3d 200 for the proposition that medical marijuana patients are not disabled individuals: A ban on medical marijuana dispensaries applies equally across the board to able-bodied persons and those with disabilities alike. Plaintiffs contention that the CUA and MMPA only apply to disabled persons, and thus any infringement is per se discriminatory, is bootstrapping at best. Decriminalizing possession and transport of medical marijuana means plaintiffs are free to grow their own or travel outside their immediate City to purchase some from a co-op. There is no inalienable right to publicly access or use medical marijuana. [citing Ross.] (O.B. at p. 16) (emphasis added.) The City then asserts the CUA conveys: the right of a patient, or ... a patients primary caregiver, [to] possess or cultivate marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician without thereby becoming subject to punishment under sections 11357 and 11358 of the Health and Safety Code. Ross v. Ragingwire, supra, at 929. (O.B. at pp.30-31) (emphasis added.) First, the City argues that deeming medical marijuana patients disabled is bootstrapping at best citing the trial courts order. (O.B. at 16.) It later cites Ross where the state Supreme Court holds medical marijuana is only available for patients or their caregivers upon the written or oral recommendation of a licensed physician. (O.B. at 30-31.) The Ross court also stated, the voters declared their intent [t]o ensure that seriously ill Californians have the right to
10

obtain and use marijuana for medical purposes under the conditions stated in the act. (Ross, 42 Cal.4th at 926.) It certainly is not bootstrapping at best to postulate that seriously ill Californians recommended medicine by a physician likely suffer from a physical or mental condition that limits a major life activity and are thus disabled. Since, as the City notes in its opposition, those are the only people who can use or possess marijuana, they are part of the same group of people who meet the definition of having a disability as set forth in Govt Code 12926 and 12926.1. Accordingly, it is axiomatic that laws targeting medical marijuana collectives target disabled people. A. When use of cannabis is not unlawful, patients remain protected under the separate and independent CDPA and Unruh laws. In its opposition, the City correctly proffers that the only rights established by the CUA are exemptions from state law prohibitions for the use, cultivation, and possession of medical marijuana. (O.B. at 30-31.) Examining the separate and independent CDPA and Unruh laws, it is decriminalization that allows medical marijuana patients to remain qualified under state law because under the state definition, physical disability and mental disability do not include disorders resulting from the current unlawful use of a controlled substance or other drugs. (Ca. Govt Code 12926(k)(6); Ca. Govt Code 12926(j)(6)) (emphasis added.) When the CUA was adopted and patients with serious medical conditions complied with its terms, the use of marijuana for medical purposes was no longer unlawful under Govt Code 12926(k)(6)
11

thereby allowing otherwise disabled people to remain qualified for purposes of Unruh and the CDPA. Despite the Citys suggestion otherwise, there was no need for the CUA or MMPA to explicitly provide disability protection for the people it was intended for seriously ill patients. The state had, long before the CUA was enacted, provided independent laws including the CDPA and Unruh to protect patients suffering from physical or mental conditions that limit major life activities from discrimination. B. The MMPA established the patient collective system that can only provide for disabled individuals Anaheim correctly cites City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729 to support its argument that the CUA and the MMP do not expressly or impliedly preempt Riversides [ordinance] declaring a medical marijuana dispensary ... to be a prohibited use, and a public nuisance, anywhere within the city limits. (O.B. at 31.)

However, state law preemption under Cal. Const. art. 11, 7 is not at issue here. It is doubtful there is a state law that preempts methadone clinic bans through art. 11, 7. Yet, Unruh and the CDPA, by incorporating rights protected by the ADA, both independently prohibit city bans of methadone clinics not through state law preemption, but rather because such bans impermissibly discriminate against disabled individuals.
12

(See Bay Area

Addiction Research and Treatment, Inc. v. City of Antioch (9th Cir. 1999) 179 F.3d 725; Project Life, Inc. v. Parris Glendening (2001) 139 F.Supp.2d 703; Regional Economic Community Action Program, Inc. v. City of Middletown (2d Cir. 2002) 294 F.3d 35.) Like methadone clinics and AIDS hospices, medical marijuana collectives exist only for seriously ill and disabled patients. (Health & Safety Code 11362.7; Health & Safety Code 11362.7(h)(1)-(h)(12); Health & Safety Code 11362.775.) Through the MMPA, collectives can only provide for seriously ill Californians suffering from the ailments enumerated in Health & Safety Code 11362.7(h) and who by definition are disabled individuals under Govt Code 12926, 12926.1. The MMPA was enacted in 2003, long after the people voted for the limited criminal liability exceptions included in the CUA. When it was enacted, the Legislature knew the law was for seriously ill and disabled people since the law repeatedly says that and lawmakers referenced the ADA in Health & Safety Code 11362.7(h)(12)(A). Accordingly, just as they cannot ban methadone clinics, cities cannot ban medical marijuana collectives or treat them differently than comparable uses that provide for the disabled and seriously ill.

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C.

Contrary to the Citys argument and the trial courts erroneous conclusion, denying access to medical marijuana dispensaries prevents patients from operating on a level playing field In its opposition, Anaheim cites the trial courts order sustaining its

demurrer to the FAC: Since the DPA is supposed to level the playing field between ablebodied and disabled persons, it cannot be used to augment possession/use/cultivation if doing so only inures to the benefit of seriously ill persons. This would in theory result in reverse discrimination to able-bodied persons interested in possessing marijuana. (O.B. at 15-16) (emphasis added.) The notion proffered by the City and adopted by the trial court that access to marijuana disconnected from disability comprises the discrimination issue in this case is simply wrong. The patients have been recommended medical marijuana so they can operate, as much as possible, free from the ailments or symptoms that result from their disabilities. Indeed, the CDPA and Unruh are in-part meant to level the playing field for disabled patients with cancer who may otherwise be confined to bed but for the mitigating medicines and aides they use. The states anti-discrimination laws are meant to ensure patients with AIDS who might be severely limited without the medical marijuana recommended by their respective doctors can likewise live on a level playing field with those people who are not stricken with that disease. Even patients with insomnia a serious disability that affects the major life activity of sleep operate outside the level playing field referred to by the trial court when the

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mitigation prescribed by their respective doctors is effectively denied because of discriminatory laws, policies, procedures, and actions of public entities. For the plaintiffs in this case, the allegation in their FAC regarding the impact the Citys discrimination has had on their ability to operate on a level playing field is unambiguous: When Plaintiff patients are unable to access and obtain medical marijuana to mitigate, control, cure, and/or alleviate symptoms associated with [their] disability, [their] movements, freedom, and functions are severely limited in a manner that prevents meaningful access to and use of public services including but not limited to roads, sidewalks, libraries, and health care services. (F.A.C. at p.20,ll.5-9.) Even more callous is the Citys inclusion of the trial courts reverse discrimination analysis. One cant help but hope the trial courts reverse discrimination toward able-bodied persons who may be interested in possessing marijuana theory is, at least in-part, vitiated by the assumption most able-bodied persons do not wish AIDS, cancer, or insomnia on themselves. More importantly, the reference to reverse discrimination

illustrates the misunderstanding by the City and trial court of the discrimination at issue in this case. In California, only patients or their

authorized caregivers in full compliance with the states CUA are eligible for exceptions from the general unlawful status of marijuana use and possession (Ross, 42 Cal.4th at 926) and only those patients and caregivers in full

15

compliance with the MMPA for criminal liability exceptions related to other medical marijuana activities (Hochanadel, infra). Absent medical marijuana that alleviates or treats their serious illnesses and disabilities, the patients here do not operate on the trial courts proverbial level playing field with able-bodied persons. Despite the Citys mistaken notion, it is not equal access to marijuana at issue here. Rather, discrimination occurs when a city law, policy, rule, or procedure denies access to the mitigating medication and aides used by disabled individuals that allow them meaningful access to public services, to participate in life activities, and to operate on as close a level playing field as possible with citizens not stricken by disability or serious illness. Wheelchairs, seeing-eye dogs, chemotherapy, and medical marijuana are all things used by disabled people to level the playing field. While cities have no obligation to provide these things, they cannot discriminate against those people who, because of serious illness or disability, level the playing field through their use. D. Patients are not required to forego a prescribed or recommended treatment or aide simply because another type of treatment or aide is available Anaheim mistakenly avers that because patients can cultivate medical marijuana on their own or can use a different medication that may offer some treatment or symptom relief, there is no discrimination. Indeed, the City cites Crowder v. Kitagawa (9th Cir. 1996) 81 F.3d 1480 and correctly states that the
16

quarantine policy was actually causing harm to disabled persons. (O.B. at 17.) Despite acknowledging the quarantine law at issue in Crowder was actually causing harm to disabled persons, Anaheim later postulates that its admitted MMD ban proscribes marijuana from everyone, not just disabled people: But Appellants have not, however, offered any authority for its premise that Anaheim's MMD ban discriminates against anyone. The ordinance does not permit some people to obtain marijuana while excluding those with disabilities or medical conditions. Rather, no one can obtain it from an Anaheim MMD. If anything, the ordinance is completely neutral on its face. (O.B. at 23.) Yet Anaheims ban on medical marijuana collectives operates to harm the disabled in a manner similar to the law at issue in Crowder. There, the mitigation used by the plaintiff was the seeing-eye dog denied to him because of the states facially neutral quarantine law. The court did not require the plaintiff to use a human guide or a rental seeing-eye dog. Rather, as a protected individual, he should have been able to use his seeing-eye dog in a manner that helped level the playing field for him in regard to use of public services, living his life, and enjoying his vacation in Hawaii. Like the plaintiff in Crowder, patient Marla James is able to use and enjoy public services, participate in life, and operate on a more level playing field when she has access to the cannabis medication recommended by her doctor. She is not required to travel long distances to find a place where co-ops are not prohibited

17

as the City and trial court suggest. Nor is she required to cultivate her own medication in light of the later enacted MMPA. The position taken by Anaheim again demonstrates its

misunderstanding of the discrimination at issue in this case when it writes, [t]he ordinance does not permit some people to obtain marijuana while excluding those with disabilities or medical conditions. To the contrary, the ordinance can only exclude those with disabilities and medical conditions from obtaining marijuana because those are the only people under state law who can use medical marijuana dispensaries with recommendations from licensed physicians. (Health & Safety Code 11362.7(h)(1)-(h)(12), 11362.775.) By excluding those people from accessing the medication that alleviates their symptoms and that makes it possible for them to operate on the level playing field referred to by the trial court, the City is indeed discriminating against the those with disabilities and medical conditions it insists it is treating equally. Anaheim would, in fact, be treating the disabled plaintiffs equally if it similarly banned providers of non-cannabis medications that treat or alleviate conditions associated with cancer, AIDS, glaucoma, and insomnia or, if as it suggests in its opposition brief, it forced everyone in the City to contract disabling diseases and serious medical conditions. Using the Citys faulty analysis, it is then that everyone in Anaheim would be on a level playing field.
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Another indicator of the Citys misunderstanding of the discrimination at issue here is its statement that its ban of medical cannabis dispensaries is facially neutral. The City knows that any legislation targeted at medical

marijuana can only impact patients all of whom have a disability as defined under state law. Accordingly, despite its averments to the contrary, unlike the law at issue in Crowder, Anaheims dispensary ban ordinance is facially discriminatory. E. The rational basis equal protection holding in Hill does not apply in this case Citing County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 868-69, Anaheim quotes the trial courts order noting, There is no unfettered right to cultivate or dispense marijuana, and dispensaries are not similarly-situated to pharmacies under the Equal Protection clause. (O.B. at 16-17.) Again, the discrimination at issue here is not the right of a medical marijuana dispensary owner to dispense marijuana. Likewise, the issue is not whether medical cannabis dispensaries and pharmacies are similarly situated. Hill analyzes the equal protection issue from a perspective of a dispensary operator not from the perspective of patients. (Id. at 869.) Here, the issue is not whether pharmacies and dispensaries are similarly situated, but whether they are comparable uses from the perspective of disabled patients. For a patient with cancer, the providers of Tamoxifen (brand name Nolvadex), prescription opiate-based medication, and medical cannabis are,
19

for all intents and purposes, the same. If a city law bans all Tamoxifen providers citing the ability of patients to extract the drug from the Yew tree and virtually every surrounding city implements the same type of restriction, the ability of the patient to treat the cancer and return to the level playing field is substantially impaired or effectively eliminated. If Tamoxifen is not effective but medical cannabis is, the same holds true. It follows that Hill is inapplicable in this case because it examines inequality from a perspective of a business owner, not patients who use medication prescribed by their doctors in order to participate meaningfully in life activities, use and enjoy public services, and operate on the level playing field referred to by the trial court. III. THE EMPLOYMENT RELATED ACCOMODATION ISSUES IN ROSS ARE INAPPLICABLE HERE Again citing Ross, the City proffers that the employment

accommodation issue in that case requires that the patients here be denied relief from its continuing discrimination. (O.B. at 16,17,30,31.) Despite

Anaheims contentions, the Ross decision was in large-part based on the lack of notice to employers in voter pamphlets advocating passage of the CUA as well as on state economic policy related to employment. (E.g., Ross, 42 Cal.4th at 925-26, Neither is employment law mentioned in the findings and declarations (Health & Saf.Code, 11362.5, subd. (b)(l)(A)-(C) & (2)) that precede the Compassionate Use Acts operative provisions.) While

20

employment law was not mentioned in the CUAs findings and declarations, seriously ill patients were repeatedly. (Ibid.) Noting the differences between FEHA and other provisions of state disability law, the court in Wilson v. Murillo (2008) 163 Cal.App.4th 1124 wrote: We believe the dissimilar nature of the relationship between an employer and an employee from that between a restaurant owner and patron militates against using an employment definition of adverse action for purposes of establishing a prima facie retaliation claim in a public accommodation setting. (Id. at 1135.) The policy considerations related to the employment provisions of FEHA and the complete lack of notice to employers in the CUAs findings and declarations distinguish Ross. Not only is Ross dissimilar for that reason, the basis for its decision also rested substantially on economic accommodation principles discussed by the patients in their opening brief. Employment

accommodation is far different than discrimination by a City that should be giving meaning and effect to state law enacted solely for the benefit of its seriously ill citizens. As Anaheim was in this case, all California cities were aware of the people for whom the CUA and MMPA were enacted because those people are referenced throughout those laws and were unambiguously identified in the voting materials supporting passage of the CUA. Moreover, the independent state anti-discrimination laws that protect disabled people were operative years before passage of both the CUA and MMPA. It follows that city bans of dispensaries, like bans of comparable uses like methadone
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clinics,

AIDS

hospices,

specialty

medical

clinics,

and

pharmacies,

impermissibly discriminate against disabled individuals. IV. THE PATIENTS HAVE EACH BEEN NEGATIVELY IMPACTED BY THE CITYS BAN ON PATIENT GROUPS AND THEREFORE HAVE STANDING TO ASSERT CLAIMS Again misstating the gravamen of the patients FAC, Anaheim asserts the plaintiff patients have no standing to bring claims against the City: As the FAC is based on the MMDs purported right to distribute marijuana under the CUA and MMP, the individual Appellants do not have standing to seek a judicial determination of the contours of that alleged right. (O.B. at p. 45.) Again, contrary to the Citys assertion, the FAC is based on the patients right to access medication, not a dispensarys right to distribute marijuana. Anaheim should have realized at this point this case is about patients claiming the right to access medication in order to level the playing field, not about a dispensary operator seeking a land use right under city law or the rights of non-patients to use marijuana. Like a paraplegic person who levels the playing field through use of a wheelchair, these disabled patients use medical marijuana so they can engage in life activities they are otherwise restricted from or unable to participate in because of their respective illnesses and disabilities. Unlike cases involving positive accommodation, in this case the City need not spend money to build wheelchair ramps or widen doors. All it must do is refrain from enacting and enforcing discriminatory laws that operate to interfere with or
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prevent the disabled plaintiffs from being able to, in a manner similar to that available to other seriously ill and disabled people, access the mitigating medication, aides, and services that help them to level the playing field. Further arguing the individual plaintiffs here lack standing, the City compares them to shareholders of a corporation. (O.B. at 44.) Based on its mistaken notion that this case is about dispensaries seeking the right to distribute marijuana, Anaheim argues these so-called shareholders have no right to bring an action on behalf of the corporation to independently advocate for its right to distribute: The rules governing corporate standing are pertinent here. Because a corporation exists as a separate legal entity, the shareholders have no direct cause of action or right of recovery against those who have harmed it. [Citations omitted.] (O.B. at 44) (emphasis added.) Despite the Citys mischaracterization, this case is not about harm to a corporation, but rather is about the direct harm caused to patients resulting from actions taken against their collective and each of them individually. For example, the Citys ban adversely impacts each patient plaintiff because it has actually resulted in denial of access to medication for each of them. In terms of the collective plaintiff in this case, the challenge of the Citys ban is based on the impact it has on the collectives members as disabled people. Throughout the plaintiffs FAC, the allegations describe the adverse impact the ban has actually had on them as well as other patient members of the collective. (FAC at p.21,ll.7-8, The harm suffered by the Plaintiffs includes
23

loss of access to medication for individuals suffering from severe physical disabilities and serious/terminal illnesses; FAC at p.19,ll.13-14, such

enforcement causes Plaintiffs to suffer physical, mental, and/or financial injuries; FAC at p.20,ll.16-20, 109. Each of the Plaintiff PATIENTS will suffer immediate and irreparable harm ,,, in that they will lose access to their medication, they will be denied association with one another and they will lose immediate access to public services.) Since the impact allegations in the FAC are substantial, it appears the Citys argument that the FAC lacks factual allegations rests on assumptions the patients must have some property interest or ownership control over the collective and that each must actually live in Anaheim. (O.B. at 43.) Yet the authority cited by the City is inapposite to those assumptions. (O.B. at 42-43; citing, e.g., County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 814, [a]t a minimum, standing means a party must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.) Here, the patients are not suing as shareholders advocating for a corporation. Each of them has alleged actual injury caused by the Citys discriminatory ban regardless of ownership and control or where they live. Accordingly, each has standing to assert the claims included in the FAC.

24

Standing for the collective plaintiff is not only proper based on the injuries to it alleged in the FAC, but is also provided through the explicit provisions of 28 C.F.R. 35.130(g), part of the ADAs implementing regulation: A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. This part of the ADAs implementing regulation gives, for example, a methadone clinic standing to bring a discrimination claim for the disabled individuals it serves. (See Addiction Specialists, Inc. v. Township of Hampton (3d Cir.2005) 411 F.3d 399, 405-07.) The states MMPA refers specifically to collectives as associations of patients and caregivers in Health & Safety Code 11362.775. Given medical marijuana dispensaries can only consist of seriously disabled patients and their authorized caregivers (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1002-1003), the City knows members of dispensaries are disabled individuals. (O.B. at 6, e.g. In 1996, proponents of the use of medical marijuana sought to provide legal protection to seriously ill Californians who possessed or cultivated marijuana for legitimate medical purposes.) Like Civil Code 51(f) and 54(c) incorporate by reference the protections of rights included in the ADA, they also incorporate 28 C.F.R. 35.130(g) to the extent that subsection gives standing to entities or associations because the regulation does not create a right outside the scope of the
25

underlying statutory scheme. (Enyart v. Nat'l Conference of Bar Examiners, Inc. (9th Cir. 2011) 630 F.3d 1153, 1162.) The announced goal of the Legislature to ensure Californias laws are more protective of disabled individuals than the ADA (Govt Code 12926.1(a)) suggests that inclusion of ADA protected rights should also include complimentary parts of the federal laws implementing regulation aimed at achieving nondiscrimination. Further

supporting inclusion, the implementing regulation itself does not create rights not already protected by the ADA (e.g. exclusion or denial of equal services, programs, or activities). On the other hand, if the implementing regulation is not included, disabled individuals subject to discrimination could be left without redress. Accordingly, contrary to the Citys suggestion, the inclusion of the right conveying entity standing contained in 28 C.F.R. 35.130(g) is appropriate in this case. V. THERE IS NO FIRST AMENDMENT RIGHT FOR CITIES TO USE TAXPAYER MONEY TO THWART STATE LAW THAT DIFFERS FROM, BUT IS NOT PREEMPTED BY, FEDERAL LAW ON THE SAME SUBJECT In its opposition, the City asserts the appellants complain that the City is cooperating with the Federal Govt. in its enforcement of federal law. (O.B. at 51.) It then cites cases holding that city officers must honor federal law as well as cases that prohibit cities from declaring war on the federal Constitution. (O.B. at 51-53.) It continues,

26

Appellants read state law as nullifying the federal CSA so that [city personnel are] not even permitted to contact federal authorities concerning federal CSA violations of which they are aware. (O.B. at 53.) The plaintiffs in this case have not read state law as nullifying differing federal law in the area of marijuana. Nor is it their position that city personnel cannot contact federal authorities to report suspected or actual federal crimes. It is their position, however, that city personnel cannot use city tax dollars to discover, investigate, and report marijuana activities that they know are not violations of state law. Anaheim also cites the First Amendment as providing the basis for its officers to report federal violations to federal authorities. (O.B. at 55.) Yet nowhere in its brief does it address the expenditure of state taxpayer dollars it has used to discover, investigate, and then report those federal violations it knows are excepted from liability under state law. It does not say anything in its brief about the thousands of personnel hours spent investigating and reporting state compliant medical marijuana collectives to the U.S. Attorney and DEA. Nor does it tell the court it has subsequently reported those hours to the U.S. Department of Justice in requests it has made to be paid 80% of proceeds generated through the sale of properties the federal sovereign is forfeiting simply because the landlords of those properties leased space to state complaint medical marijuana collectives.

27

Despite Anaheims argument, it is the plaintiffs position in this case that the City, as a creature of state government, must give meaning and effect to state law that differs from, but that is not preempted by, federal law on the same subject. As the City so aptly noted in its brief, California is free to create a narrow exception to the [state's] criminal law in the area of medical marijuana. (O.B. at 53.) Those exceptions do not protect collectives or As it suggested in its

individuals are not in compliance with state law.

opposition brief, collectives allowing the diversion of medical marijuana to those not qualified to use it should be subject to enforcement action. (O.B. at 56.) In such cases, the City itself can enforce state law. However, as the City admits in its brief, it instead called in the federal government. (O.B. at 56.) Instead of enforcing state law to eliminate collectives allowing the diversion of medical marijuana to those not qualified to use it, the City opted to spend taxpayer dollars to discover, investigate, and report to the federal government activities of all medical marijuana collectives in the City, the majority of which comply with state law. In the many pages of argument included in its opposition dedicated to preserving its right to continue cooperating with the federal government, Anaheim not once addresses the expenditure of taxpayer dollars. The plaintiffs in this case have not alleged city officials are barred from communicating with the federal government. Nor have they suggested people who work for the City
28

cannot volunteer their own time and resources to help the federal government eliminate all medical marijuana dispensaries regardless of state compliance. Time spent while working for the City by personnel and officials who receive compensation results in the expenditure of tax dollars. A short phone call made from a City phone or e-mail sent using a City internet connection is paid for by taxes. It is the plaintiffs position in this case that such expenditures made by a City to enforce federal statutes that differ from, but that do not preempt, state law on the same subject in an effort to prosecute or otherwise harm (i.e. through federal forfeiture, etc.) people in compliance with state law violate CCP 526a. Respectfully submitted on October 2, 2013: _________________________________ Matthew Pappas, SBN: 171860

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Exhibit 2

Exhibit 3

Exhibit 4

PROOF OF SERVICE BY MAIL

I, Victoria Pappas, am a citizen of the United States and resident of Mission Viejo, California. My address is 22762 Aspan St., #202-107, California. On October 16, 2013, I served the Appellants First Request for Judicial Notice on the interested parties in this case shown below by depositing separate envelopes addressed to each of them in which the aforementioned documents were enclosed and postage paid and affixed into the U.S. Mail at Lake Forest, California:
James Markman City Attorney Richards, Watson & Gershon th 355 S. Grand Avenue, 40 Floor Los Angeles, CA 90071-3101 Clerk of the Orange County Superior Court For: Hon. David Chaffee 700 Civic Center Drive West Santa Ana, CA 92701 Office of the California Attorney General 1300 I Street P.O. Box 944255 Sacramento, CA 94244-2550

I declare under penalty of perjury under the laws of the United States and the laws of the state of California that the aforementioned is true and correct: EXECUTED this 16th day of October, 2013 at Lake Forest, CA, United States of America.

_______________________________ Victoria Pappas